JINSA Report #: 953
Before leaving town, the House and Senate agreed to a 60-day extension of provisions of the Patriot Act set to expire at the end of the year. When they return they will take up the separate House and Senate versions of the bill that would reauthorize the full Patriot Act through 2013.
The three key - and sometimes controversial - provisions extended are known as the "lone wolf," "business records," and the "roving wiretap."
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The "lone wolf" allows the government to track a non-American suspect who has no discernable tie to a terrorist group or foreign power. It appears never to have been used in a FISA application (FISA is the Foreign Intelligence Surveillance Act that governs national security related warrants).
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The "business records" provision allows the government to compel third parties (telephone companies, banks, etc.) to provide them access to a suspect's record without notifying the suspect. The FBI told the Senate that the "business records" provision had been used just over 200 times between 2004 and 2007.
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"Roving wiretaps" allow investigators to apply one FISA court warrant to all forms of electronic communications used by the suspect (phone, cell phone, BlackBerry, home computer, etc.) but only if the government can show that the suspect is switching devices to evade detection. The government has applied for roving wiretaps an average of 22 times a year since 2001.
The numbers repudiate the notion that the government is in wholesale violation of the civil liberties of Americans and despite his previous denunciation of the Patriot Act, President Obama has publicly supported the reauthorization with the inclusion of these three provisions. We hope Congress returns able to make the case that the government has been - and will remain - able to balance security and civil liberties while we are at war.
On the other hand, as regards civil liberties, before leaving town, President Obama issued a worrisome Executive Order regarding Interpol, the international law enforcement organization headquartered inside the Justice Department.
In 1983, President Reagan gave Interpol elements of diplomatic status, subject to constraints; the most important being that Interpol's property and assets remained subject to search and seizure, and its archived records remained subject to public scrutiny under provisions including the Freedom of Information Act. President Obama's brief Executive Order (100 words including the full title of Interpol) removes the Reagan limitations.
Interpol's files and assets are now inviolable while it conducts operations in the United States that affect Americans and American interests. Former federal prosecutor Andrew McCarthy notes that Interpol works with foreign courts including those in Europe that are investigating the Bush administration for purported war crimes, and asks, "Why is it suddenly necessary to have, within the Justice Department, a repository for stashing government files which... will be beyond the ability of Congress, American law enforcement, the media, and the American people to scrutinize?"
"Why would we elevate an international police force above American law? Why would we immunize an international police force from the limitations that constrain the FBI and other American law-enforcement agencies?"
Good questions. Congress might want to consider them when they address the civil liberties questions arising from the Patriot Act.
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Shoshana Bryen is Senior Director for Security Policy at JINSA
Founded in 1976, JINSA, a 501 (c) (3) non-profit based in Washington DC, provides leadership and affects policy on issues of American national security and foreign policy. JINSA proudly publishes the Journal of International Security Affairs. Learn more about JINSA and its programs the Web and follow us on Facebook.
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